State v. Leech

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                              v.
                    CHRISTOPHER KIM LEECH,
                          Appellant.

                        OpinionOpinion
                       No. 20160995-CA
                     Filed August 13, 2020

           Third District Court, Salt Lake Department
              The Honorable Randall N. Skanchy
                          No. 141900235

         Debra M. Nelson, Wojciech S. Nitecki, Lacey C.
               Singleton, and Melissa G. Stirba,
                   Attorneys for Appellant
                Sean D. Reyes and John J. Nielsen,
                     Attorneys for Appellee

     JUDGE DIANA HAGEN authored this Opinion, in which
   JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1      As payback for a drug deal gone wrong, Christopher Kim
Leech allegedly robbed and kidnapped two men, forced one to
shoot the other, and then directed his cohorts to cover up the
crimes. Leech was ultimately convicted on two counts of
aggravated kidnapping, two counts of aggravated robbery, one
count of aggravated murder, and one count of obstruction of
justice. Leech appeals his convictions, arguing that the district
court erroneously admitted the preliminary hearing testimony of
a witness who refused to testify at trial. We agree with Leech
that the preliminary hearing testimony was not admissible
under rule 804(b)(1) of the Utah Rules of Evidence because the
                          State v. Leech


defense did not have a similar motive and opportunity to
develop the witness’s testimony at the preliminary hearing as it
would have had if the witness had testified at trial. We further
conclude that the admission of this testimony prejudiced his
defense with respect to his conviction for obstruction of justice,
but not his remaining convictions. Accordingly, we affirm his
convictions for aggravated kidnapping, aggravated robbery, and
aggravated murder, but reverse and remand for a new trial on
the obstruction of justice count.


                        BACKGROUND

                           The Crimes 1

¶2     In late November 2013, a drug middleman (the
middleman) was contacted by an old friend from high
school (the dealer) who requested “a quarter pound”
of methamphetamine because the middleman could “get
it cheaper” than she could. The dealer gave the middleman
$2,200 and a rental car to pick up the methamphetamine.
The middleman’s source for methamphetamine had only two
of the four ounces that the dealer needed, but the
source promised the middleman he would deliver the other two
ounces the following day. But when the next day came, the
middleman could not get ahold of his source. Meanwhile, the
dealer was growing increasingly impatient. She told the

1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly.” State v. Scott, 

, ¶ 5
n.3, 

. In doing so, we do not suggest that this is the
only version of the facts that could be supported by the
evidence. If the State elects to retry Leech on the obstruction
count, a newly empaneled jury must draw its own conclusions
from the evidence presented in that trial.




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                          State v. Leech


middleman that her customers were waiting and that “[he]
needed to hurry up.”

¶3     The middleman contacted his best friend (the victim) who
“said that he could get . . . [t]he other two ounces” but that “it
was going to be a little bit more expensive.” The middleman
gave the remaining cash and the rental car to the victim so that
the victim could obtain the additional two ounces. The two
ounces of methamphetamine that the middleman had already
acquired were still hidden in the trunk of the rental car.

¶4     For the next few hours, the middleman “dodged” the
dealer’s phone calls and waited for the victim to come back with
the drugs. Eventually, after hearing nothing from the victim, the
middleman called the dealer and told her that she needed to pick
him up.

¶5     After picking up the middleman, the dealer drove him to
her mother’s house (the house), where they waited until her
boyfriend, known as T.J., arrived. T.J., the dealer, and the
middleman then drove around surrounding neighborhoods
looking for the victim. The dealer “was a little stressed out” and
told the middleman that she “was just tired of people ripping
her off.” They could not find the victim, so they returned to the
house and smoked methamphetamine in the garage.

¶6    After a while, the dealer “heard a truck pull up” and told
the middleman, “[W]e need to figure this out because [Leech is]
here and he [is] going to freak out.”2 Sure enough, Leech went

2. There is no satisfying explanation for Leech’s involvement,
much less the intensity of his reaction. Although Leech was
dating one of the dealer’s sisters, the record suggests he had no
other connection to the drug deal. At trial, the defense made
much of the fact that Leech had “no motive” because he had
“nothing to do with this drug transaction” and “no dog in this
                                                    (continued…)


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                           State v. Leech


into the garage, “pulled out a gun,” and asked the middleman
“what was going on” and “what the problem was.” The
middleman said that he “was taking care of it,” but Leech, gun
still in hand, told the middleman that “it didn’t seem like [he]
was taking care of shit and that if [he] didn’t get it taken care of
it was [his] ass.”

¶7       Leech kept the middleman in the garage while the
dealer continued to look for the victim. There were other
people in the house during this time. One of the witnesses
testified that when the middleman tried to come inside the
house to use the restroom, Leech and T.J. put “guns in [his] face”
and “shov[ed] him back into the garage.” According to the
witness, Leech said he “[could]n’t wait until he f[ound]” the
victim because “he was going to make [the middleman and the
victim] pay for what they did. That he was going to shoot [them]
. . . [b]ecause they took from [the dealer].” The witness testified
that all the men present agreed and there “was a lot of
adrenaline going.”

¶8    Eventually, the dealer left the house with Leech, T.J., and
the middleman and went to her uncle’s apartment (the
apartment). At some point, one of the dealer’s sisters and her




(…continued)
fight.” The State argued that Leech was trying to send a
message: “You don’t steal from my girlfriend’s sister.” But it
acknowledged that Leech’s reaction was “over the top” and
“nonsensical.” In closing argument, the State recognized that it
made no “sense why [Leech] is doing this and acting just so out
of control for a couple of ounces of meth and a rental car, both of
which he got—everything back,” but it reminded the jury that it
had no burden to prove motive and that “this is one of those
cases” where the “why” is “inexplicable.”




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                           State v. Leech


husband, known as Juice, joined them. 3 While at the apartment,
a cell phone rang with an incoming call from the victim. Leech
handed the cell phone to Juice and had him tell the victim that
“if he brought the car [back] right now, . . . he gave his word
nothing would happen to him.” Juice told the victim to meet
them at the apartment and gave him the address. As they waited
for the victim to arrive, Leech “looked mad” and the middleman
was “really quiet . . . and he looked scared.”

¶9     When the victim arrived at the apartment, Leech pointed
his gun at the middleman and the victim and ordered them to lie
on the floor. Juice pulled out a gun, too. At Leech’s direction, T.J.
retrieved some speaker wire from his truck and tied the
middleman’s and the victim’s hands behind their backs while
Leech took all their belongings from their pockets. Leech and T.J.
then blindfolded the two men by making a hole in the hood of
each man’s sweatshirt and tying it to the zipper with speaker
wire. They also removed the two men’s shoes.

¶10 At Leech’s direction, the middleman and the victim were
led out of the apartment and forced into a truck. As they were
leaving, Juice’s wife asked what was going to happen to them.
Leech told her, “[D]on’t worry, nothing’s going to happen to
them. I’m going to have them . . . walk down the mountain with
their bare feet.” Juice’s wife told Leech that her husband was not
going with him, but Leech responded by “pointing the gun
towards [her,] and Juice automatically went out the door with




3. It is unclear from the testimony at trial whether Juice and his
wife were among the group at the house while the middleman
was being held in the garage or whether they made their first
appearance in this series of events at the apartment. However,
the timing of their appearance on the scene is not critical to our
analysis.




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                           State v. Leech


Leech.” She testified that “[w]hen they all left, [she] didn’t think
any of them,” except Leech, “were coming back.”

¶11 What happened next is based solely on the middleman’s
testimony. According to the middleman, T.J. drove him, the
victim, Juice, and Leech up a canyon. On the way, the victim
pleaded with Leech that “he didn’t have to do this, just to let
[them] go and [they] wouldn’t say anything.” But Leech told him
to “[s]hut the fuck up, it’s too late.”

¶12 Once they reached their destination, Leech said he would
take the victim and told Juice to take the middleman. They led
the blindfolded men out of the truck and down a hill covered in
dirt and ice. At the bottom of the hill, the middleman and the
victim were forced to kneel at the top of an embankment.
Someone released their blindfolds, and the victim turned to the
middleman and said, “Sorry, bro, I guess this is it.” Leech then
shot the victim in the back. The middleman saw the victim roll
down the embankment and heard him say, “I’m dead.”

¶13 The middleman “tensed up and stared off ahead,” just
“waiting to get shot.” Then someone cut his hands loose. Leech
grabbed the middleman, pulled him to his feet, and said, “There
is your homeboy . . . . Finish [him] or you’re next.” Leech held
one gun to the back of the middleman’s head and handed him a
second gun with a single bullet in the chamber. The middleman
pointed the gun at the victim and pulled the trigger, but the gun
jammed. When he turned to hand the gun back to Leech, he saw
Juice and T.J. standing behind him. Leech took the gun, reloaded
it, and handed it back to the middleman. With Leech’s gun still
trained on him, the middleman shot the victim in the head and
handed the gun back to Leech.

¶14 Just then, Leech saw headlights coming down the road at
the top of the hill and told everyone to stop. Once the car passed,
Leech said, “Let’s go.” T.J. led the way back up the hill with
Juice, the middleman, and Leech following behind. At that point,


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                          State v. Leech


the middleman saw that the other two men were armed with
guns as well.

¶15 According to the middleman, Leech then orchestrated a
plan to dispose of the evidence. Leech said that he would “take
care of the guns” and told T.J. to detail clean his truck. Leech
told the middleman that he should continue to look for the
victim as if “nothing happened.” When they got back to the
house, Leech instructed the middleman to take a shower, leave
his clothes outside the bathroom door, and change into fresh
clothes that the dealer provided. When the middleman got out of
the shower, his clothes were gone. A few days later, the dealer
returned the middleman’s cell phone to him, but “the call log
and the text messages were deleted.” The dealer told the
middleman that she had asked Leech not to hurt him and was
glad he was okay.

¶16 The middleman was arrested shortly thereafter on an
unrelated weapons charge. After his girlfriend bailed him out of
jail, he told her what had happened with the victim. The
middleman’s girlfriend called the FBI.

¶17 The middleman was already acquainted with the FBI
because he had been working as a cooperator, providing
information on the drug cartel that supplied him with
methamphetamine. But when he was interviewed about the
victim’s murder, the middleman lied to the FBI about
“everything” that had happened that day before the men left for
the canyon. The middleman was interviewed by the FBI “three
or four” times, during which he “changed [his] story a few
times.” At trial, the middleman claimed that he had lied in an
attempt to “protect” the dealer because he felt she saved his life
by telling Leech not to kill him.

¶18 The middleman attempted to lead law enforcement to the
victim’s body multiple times, but was never able to find its
location. Law enforcement eventually secured T.J.’s cooperation,


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                          State v. Leech


and he led police to the scene of the shooting. To recover the
victim’s body, the officers parked on an “unimproved road,”
“passed through a gate, went down a hill, and walked down a
small embankment.” The victim’s shoeless body was clothed in a
hoodie with a hole cut into the hood. His wrists appeared to
have been bound with speaker wire and he had suffered one
gunshot wound to his torso and one to his head. The medical
examiner determined that either shot would have been fatal.

                     The Preliminary Hearing

¶19 The State charged Leech with two counts of aggravated
kidnapping, two counts of aggravated robbery, one count of
aggravated murder, and one count of obstruction of justice, all
first-degree felonies. The State charged others involved in these
events with various crimes as well.

¶20 The district court held a joint preliminary hearing for
Leech, the dealer, and Juice. At the preliminary hearing, the
district court judge, acting as a magistrate, explained to the codefendants,

      This is a preliminary hearing and the purpose of
      this proceeding . . . is for the State to put on
      evidence in an effort to demonstrate probable
      cause that the offenses charged were committed
      and that you were the ones who committed those
      offenses.

      So this is a probable cause hearing, it’s not a trial.
      Different standards of proof apply at a probable
      cause hearing than apply at trial. One of the most
      important ones is that any doubts or questions
      about evidence at a preliminary hearing get
      resolved in favor of the State and against the
      defendants. So the benefit of the doubt goes to the
      State in a preliminary hearing.


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                          State v. Leech


      Probable cause means enough evidence that the
      Court is convinced that a reasonable jury could
      find, not that they necessarily would, but that they
      could find the offenses charged were committed
      and that you were the individuals who committed
      them. If probable cause is found under that
      analysis, then the case would be bound over for
      further proceedings at which time you would all be
      afforded your entire complement of constitutional
      rights . . . .

¶21 The State then called its witnesses, including
eyewitnesses, the chief medical examiner for the State of Utah,
and a detective. Relevant to this appeal, the State called T.J. to
testify about his involvement in the crimes. At the preliminary
hearing, Leech’s counsel cross-examined each of the State’s
witnesses, including T.J.

¶22 In his preliminary hearing testimony, T.J. largely
corroborated the middleman’s testimony. T.J. testified that, at
the apartment, he saw Leech order the middleman and the
victim to get down on the floor at gunpoint. Leech asked T.J. if
he had any rope, and T.J. retrieved some old speaker wire from
his truck. Leech told T.J. to tie up both men. When T.J. failed to
do it properly, Leech gave him instructions on how “to cross the
hands” and then took over tying the other man’s wrists. After
Leech emptied both men’s pockets, he told T.J. to pull his truck
around back. T.J. did so and waited in his truck.

¶23 A short time later, T.J. saw the other four men emerge
from the apartment, with Juice escorting the victim and Leech
escorting the middleman. The captive men’s eyes were covered
by their hoods, which had been tied tightly around their faces.
T.J. testified that Juice and Leech placed the men into the back
seat of T.J.’s truck, with Juice climbing in after them. Leech got
into the front passenger seat and told T.J. to drive. Leech



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                           State v. Leech


directed T.J. where to go and eventually told him to pull off on a
side road near a ski resort.

¶24 When they got out of the truck, Leech asked T.J. for his
gun. T.J. gave his gun to Leech, who already had his own gun
tucked in the waistband of his pants. T.J. testified that Leech
then led the victim and the middleman down the hill while he
and Juice followed behind. Eventually, Leech stopped and told
the victim and the middleman to kneel on the ground. Leech
then shot the victim from behind, causing him to roll about ten
feet down the hill. T.J. saw Leech say something to the
middleman, but he could not hear what was said. The
middleman got up, and he and Leech walked down to the
victim. T.J. saw Leech give the middleman a gun and then saw
the middleman shoot the victim once before handing the gun
back to Leech.

¶25 Afterward, Leech said he would “get rid of” T.J.’s gun.
T.J. testified that he did not know what happened to the gun and
never saw it again. Leech also instructed T.J. to detail his truck
and get rid of his clothes. T.J. kept his clothes and never detailed
his truck, but he gave Juice his boots, along with the clothes the
middleman left outside the bathroom when he showered. T.J.
testified that he heard Leech tell Juice to burn the clothes and the
boots.

¶26 At the conclusion of the preliminary hearing, the district
court found that the State had “established probable cause that
[Leech] . . . committed all of the offenses charged,” and the case
proceeded to trial in September 2016.

                             The Trial

¶27 At trial, just after jury selection, T.J. took the stand outside
the presence of the jury and told the court that he refused to
testify. T.J. had been given conditional use immunity, meaning
that any truthful testimony T.J. gave at Leech’s trial could not be


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                           State v. Leech


used against him at his own trial. The court informed T.J. that his
refusal to testify despite the grant of immunity meant that he
“would be found in contempt of court.” The court ordered T.J. to
testify, but he refused to do so.

¶28 After T.J. refused to testify, the State indicated that it
would move to admit T.J.’s preliminary hearing testimony.
Leech objected, arguing that that testimony was inadmissible
hearsay and that the exception set forth in rule 804(b)(1) of the
Utah Rules of Evidence was inapplicable. Leech asserted that he
did not have the same opportunity and motive to cross-examine
T.J. at the preliminary hearing because “it is the practice in this
jurisdiction to limit cross-examination at preliminary
hearing[s],” given that credibility is not relevant to the probable
cause determination. Defense counsel admitted that he “did not
pose a question” during his cross-examination of T.J. “that was
objected to and . . . sustained,” but he maintained that he did not
have the same opportunity and motive to cross-examine T.J. as
he would have had at trial because he understood the limited
scope of the hearing and because he did not have access to
additional impeachment material that became available only
after the preliminary hearing.

¶29 In response, the State relied on State v. Brooks, 

 (Utah 1981), superseded by constitutional amendment as stated in
State v. Goins, 

, 

, and argued that “the
case law is clear” that defense counsel “only had to have the
opportunity to cross-examine the witness” for preliminary
hearing testimony to be admissible when a witness becomes
unavailable at trial because “defense counsel’s motive and
interest are the same in either setting.” (Cleaned up.) The State
asserted that preliminary hearings are held “to preserve
testimony . . . in case somebody passes [away], in case somebody
refuses to testify, and that[’s] the nature of this [situation].” The
district court agreed with the State and admitted T.J.’s
preliminary hearing testimony at trial.



20160995-CA                     11               

                           State v. Leech


¶30 The jury convicted Leech on all counts. Leech now
appeals.


             ISSUE AND STANDARD OF REVIEW

¶31 Leech contends that, in admitting T.J.’s preliminary
hearing testimony, the district court misapplied rule 804 of the
Utah Rules of Evidence. Specifically, he argues that the hearsay
exception under rule 804(b)(1) was not satisfied because “Leech
did not have a proper opportunity and similar motive to develop
[T.J.’s] testimony” on cross-examination during the preliminary
hearing. 4 “When reviewing rulings on hearsay, we review legal
questions regarding admissibility for correctness, questions of
fact for clear error, and the final ruling on admissibility for abuse
of discretion.” State v. Garrido, 

, 

 (cleaned up). If we determine that the hearsay testimony
should not have been admitted, we will reverse “only if a
reasonable likelihood exists that absent the error, the result
would have been more favorable to the defendant.” State v.
Goins, 

, 

 (cleaned up).


                            ANALYSIS

         I. Admission of Preliminary Hearing Testimony

¶32 Leech contends that the district court erred in admitting
T.J.’s preliminary hearing testimony when T.J. refused to testify


4. Leech also raises a cumulative error argument, but because
Leech asserts only one error on appeal, the cumulative error
doctrine does not apply. See ConocoPhillips Co. v. Utah Dep’t of
Transp., 

, 

 (“[T]he cumulativeerror doctrine does not apply when there is only one error
demonstrated or assumed on appeal.”).




20160995-CA                     12               

                           State v. Leech


at trial. “Rule 804(b) identifies categories of hearsay that are
admissible when a witness is unavailable to testify at trial.” State
v. Ellis, 

, 

. The exception in subsection
(b)(1) applies where former testimony of a now-unavailable
witness

       (A) was given as a witness at a trial, hearing, or
       lawful deposition, whether given during the
       current proceeding or a different one; and

       (B) is now offered against a party who had . . . an
       opportunity and similar motive to develop it by
       direct, cross-, or redirect examination.

Utah R. Evid. 804(b)(1). Leech does not challenge the district
court’s determination that T.J. was unavailable at the time of trial
or that T.J. provided testimony as a witness at the preliminary
hearing. He argues that the exception under subsection (b)(1)(B)
did not apply because he “did not have an adequate opportunity
and similar motive to develop the testimony during the
preliminary hearing.”

¶33 At the time of Leech’s trial, Utah courts routinely
admitted preliminary hearing testimony of unavailable
witnesses under rule 804(b)(1). See Ellis, 

, ¶ 37 (noting
that prior precedent allowed preliminary hearing testimony to
be admitted at trial). This practice was based on State v. Brooks,

 (Utah 1981), in which the Utah Supreme Court
“announced a per se rule under which preliminary hearing
testimony is admissible so long as the requirements of
unavailability and an opportunity to cross-examine are
satisfied.” State v. Goins, 

, 

. Brooks
specifically rejected the argument that Leech makes here—that
defense counsel “does not have the same motive and interest to
cross-examine at preliminary hearing as he does at trial.” 

. Instead, the court held that “[d]efense counsel’s
motive and interest are the same in either setting; he acts in both


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                             State v. Leech


situations in the interest of and motivated by establishing the
innocence of his client.” 

¶34 But in 2017, about one year after Leech’s trial, the Utah
Supreme Court held that Brooks had been abrogated by a
constitutional amendment. 5 Specifically, the court held that
“subsequent changes to article I, section 12 of the Utah
Constitution undermine one of Brooks’s key premises—that
‘[d]efense counsel’s motive and interest are the same in either
setting.’” Goins, 

 (quoting Brooks, 

). In 1994, “Utah voters amended article I, section 12 to limit
the function of preliminary examination to determining whether
probable cause exists.” 

 (cleaned up). As a result, “preliminary
hearings—at least those that function as the amended
constitution envisions—potentially limit the scope of cross-examination such that the blanket statement . . . in Brooks no
longer rings true.” Id. ¶ 32. For instance, “[a] defense attorney
who assumes that the magistrate will conduct a preliminary
hearing that comports with article I, section 12 does not have an
incentive to prepare to thoroughly cross-examine on credibility”
because such questioning would go “beyond that necessary to
establish probable cause.” Id. ¶ 34. The court concluded that the
assumption that defense counsel’s motive to cross-examine at a
preliminary hearing is the same as at trial “either no longer
aligns with the reality of practice, or places magistrates in the
uncomfortable position of choosing between conducting



5. Even though the district court did not have the benefit of the
Goins opinion at the time of trial, it governs our resolution of this
issue on appeal. New rules of criminal procedure announced in
judicial decisions apply to all cases pending on direct review.
State v. Guard, 

, 

. Therefore, Leech “is
entitled to the benefit of the Goins analysis,” see State v. Ellis, 

, 

, and the State does not argue otherwise.




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                           State v. Leech


preliminary hearings in fidelity with article I, section 12 and
permitting the type of examinations that Brooks presupposes.” 

¶35 Although Goins disavowed Brooks’s per se rule that the
same motive exists to develop testimony at a preliminary
hearing and at trial, it stopped short of replacing it “with another
blanket rule—one that provides that counsel never has the same
motive to develop testimony at a preliminary hearing as at trial.”
Id. ¶ 35. The court recognized that “there may be certain
circumstances where the nature of a witness and her testimony is
such that defense counsel will ask all the questions at a
preliminary hearing that she would ask at trial.” Id. ¶ 33.
However, the court “conditioned the admissibility of
preliminary hearing testimony on a showing that ‘defense
counsel really did possess the same motive and was permitted a
full opportunity for cross-examination at the preliminary
hearing’—a showing that [the court] conceded ‘might prove
rare.’” Ellis, 

 (quoting Goins, 

).

¶36 The State contends that this is one of those rare cases.
It argues that, because Brooks was still good law at the time of
the preliminary hearing, defense counsel would have
been operating under the assumption that T.J.’s testimony
would be admissible at trial if he were later deemed
unavailable. According to the State, defense counsel
acknowledged as much at the preliminary hearing when he
justified a line of questions posed to another witness by
explaining that it “may be our only opportunity to cross-examine this witness” because “people tend to not show up.”
The State further points out that T.J. was cross-examined at
length at the preliminary hearing and that defense counsel “did
not pose a question that was objected to and . . . sustained.”
“Given counsel’s mindset, the law in effect at the time, the lack
of limitations, and the sheer volume of questions,” the State
asserts that defense counsel had the same motive and
opportunity for cross-examination at the preliminary hearing.



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                           State v. Leech


¶37 But those observations fail to distinguish this case from
Goins. Surely, Goins’s counsel was also aware that preliminary
hearing testimony of an unavailable witness might be admitted
at trial pursuant to Brooks. But despite notice of that potential
risk, the court concluded that “Goins’s counsel did not possess
the same motive to develop testimony at the preliminary hearing
that she would have had at trial.” Goins, 

. And,
like Leech’s counsel, “Goins’s counsel cross-examined [the
witness at the preliminary hearing] without objection by the
State or apparent restriction by the judge.” Id. ¶ 7. Nonetheless,
the court concluded that counsel’s motive at trial to develop the
testimony and question the witness’s credibility “went beyond a
preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
Just as in Goins, “[w]ithout Brooks’s per se rule, we have no basis
to conclude that [Leech’s] counsel’s preliminary hearing motive
to cross-examine was similar to what would have existed at
trial.” See id.

¶38 In fact, the record in this case supports the opposite
conclusion. In opposing the admission of T.J.’s testimony at
trial, defense counsel explained that he had not cross-examined T.J. at the preliminary hearing about prior
inconsistent statements because T.J.’s credibility was not
relevant to the probable cause determination. Leech’s counsel
proffered that he had a “binder of all the statements [T.J.]
has made, double sided, . . . and literally not a page goes
by where there is not something different than the previous
time, or [that] contradicts a later statement.” Counsel then
explained that he did not attempt to impeach T.J. with these
prior inconsistent statements at the preliminary hearing because
“Utah case law is very, very clear that credibility is not an
issue” at preliminary hearings and is reserved for the trier of
fact at trial. But at “an aggravated murder trial where there is
almost zero physical evidence,” he argued, “[c]redibility is the
only issue.”




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                           State v. Leech


¶39 Moreover, defense counsel represented that he had no
opportunity to review the State’s supplemental discovery
produced just days before the preliminary hearing, which
included a new interview with T.J. as well as revised transcripts
of his prior statements. Nor did he have access to the
supplemental discovery produced in the two years between the
preliminary hearing and the trial. Defense counsel indicated that
he would have impeached T.J. at trial with inconsistent
statements T.J. had made since the preliminary hearing,
information gleaned from a recent interview of another witness,
and contradictory trial testimony—none of which was available
at the time of the preliminary hearing.

¶40 Whether the defense had a similar motive to develop
prior testimony for purposes of rule 804(b)(1) will often turn on
“the nature of a witness and her testimony.” Goins, 

. For example, in arguing this issue before the district court,
Leech contrasted T.J.’s preliminary hearing testimony with that
of the medical examiner. Leech suggested that the exception in
rule 804(b)(1) might more readily apply to a witness like the
medical examiner, whose credibility in this case was “a very
small or nonexistent issue” and whose testimony—at least in this
case—was “somewhat ancillary” to the main issues at trial. In
contrast, T.J. was not only a critical eyewitness, but also an
accomplice to each of the crimes. The opportunity to cross-examine this type of witness at a preliminary hearing will likely
be a poor substitute for confronting the witness at trial, where
the jury can observe his demeanor and assess his credibility
firsthand. Even if the magistrate permitted cross-examination
beyond the scope of the preliminary hearing, the defense may be
disinclined to impeach this kind of witness with inconsistent
statements or otherwise reveal the defense strategy until the
witness takes the stand in front of the jury. And, with such a
witness, new cross-examination material is more likely to arise
between the preliminary hearing and trial, either as part of the
ongoing criminal investigation or as the parties interview



20160995-CA                     17              

                           State v. Leech


witnesses in preparation for trial. Under circumstances such as
these, it is highly unlikely that the State could show that
“defense counsel really did possess the same motive and was
permitted a full opportunity for cross-examination at the
preliminary hearing.” See id. ¶ 36.

¶41 In this case, the State did not demonstrate that Leech had
an adequate opportunity and similar motive to cross-examine
T.J. at the preliminary hearing as he would have had at trial. The
district court’s conclusion to the contrary was based solely on
case law that has since been overruled. 6 Therefore, the district
court erred in admitting T.J.’s preliminary hearing testimony
under rule 804(b)(1).

                        II. Harmless Error

¶42 Although the admission of T.J.’s preliminary hearing
testimony was error, “not every trial error requires reversal.”
State v. Cruz, 

, 

. “Any error,
defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.” Utah R. Crim.
P. 30(a). Therefore, we must determine whether the erroneous
admission of T.J.’s testimony prejudiced Leech. See State v.




6. Neither Goins nor Ellis addresses the standard by which an
appellate court should review a district court’s determination
that the defense possessed a similar motive to develop prior
testimony within the meaning of rule 804(b)(1). But here, as in
Goins and Ellis, the decision to admit T.J.’s preliminary hearing
testimony was predicated on the since-abrogated holding in
Brooks, which constitutes an error of law. We leave for a future
case the question of the appropriate standard of review where
the district court finds that the exception in rule 804(b)(1) applies
under the legal framework announced in Goins.




20160995-CA                     18               

                            State v. Leech


McNeil, 

, 

, aff’d, 

, 

.

¶43 “Prejudice in this setting requires a showing of a
reasonable likelihood that the decision to admit [T.J.’s]
preliminary hearing testimony altered the jury verdict.” 7 See


7. Neither party suggests that the evidentiary error in this case
was of constitutional dimension, such that the State would bear
the burden of persuasion to show that the error was harmless
beyond a reasonable doubt. See State v. Silva, 

,

 (noting that, for preserved constitutional claims,
“the State bears the burden of demonstrating that the
constitutional error was harmless beyond a reasonable doubt”).
Except in cases of constitutional error, Utah law places the
burden on the defendant to prove that a preserved error is
harmful. See State v. Reece, 

, 

 (“[T]he
defendant generally bears the burden to demonstrate that the
error he complains of affected the outcome of his case.”). By
placing the burden of persuasion on the defendant, the showing
of prejudice required to establish that preserved errors are
harmful is indistinguishable from the showing of prejudice
required to establish plain error or ineffective assistance of
counsel for unpreserved errors.
        Other states distinguish between the defendant’s burden
to show prejudice resulting from an unpreserved error, and the
State’s burden to show that a preserved error was harmless. See,
e.g., People v. McLaurin, 

 (Ill. 2009) (“[W]here
the defendant has made a timely objection and properly
preserved an error for review, the reviewing court conducts a
harmless-error analysis in which the State has the burden of
persuasion with respect to prejudice.”); State v. Reed, 

, 583–84 (Minn. 2007) (“Unlike a harmless error analysis, the
defendant generally bears the burden of persuasion with respect
to the third plain error factor.”); State v. Mueller, 

                                                        (continued…)


20160995-CA                      19               

                           State v. Leech




(…continued)
(N.H. 2014) (“[W]hereas the State bears the burden under
harmless error analysis, the defendant bears the burden under
the plain error test.”); State v. Nelson, 

 (S.D.
1998) (explaining that, unlike harmless error review, “in which
the State has the burden of proving the error was not prejudicial,
with plain error analysis the defendant bears the burden of
showing the error was prejudicial”); State v. Ray, 

,
1278 n.3 (Vt. 2019) (“The State bears the burden of showing that
any preserved error is harmless.”). But in Utah, except in cases of
constitutional error, the State is not required to show that a
preserved error was harmless; the defendant is required to show
that a preserved error was not harmless.
        The harmless error doctrine is based on rule 30(a) of the
Utah Rules of Criminal Procedure, which provides, “Any error,
defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.” The United
States Supreme Court has interpreted the text of an identically
worded federal rule to place the burden on the government to
show that a preserved error did not affect the defendant’s
substantial rights. See United States v. Olano, 

, 734–35
(1993) (explaining that “a court of appeals cannot correct
[unpreserved] error unless the defendant shows that the error
was prejudicial” under rule 52(b), but “Rule 52(a) precludes
error correction only if the error ‘does not affect substantial
rights,’” shifting the burden of persuasion to the government
(cleaned up)). We recognize that the Utah Rules of Criminal
Procedure do not contain the equivalent of federal rule 52(b),
and our supreme court has suggested in passing that “[w]hile
the burden of proving an effect on substantial rights under
federal rule 52 falls on either the state or the defendant based on
whether the error is preserved or unpreserved, rule 30(a) of the
Utah Rules of Criminal Procedure is not similarly conditioned
on preservation.” State v. Lovell, 

, 

                                                      (continued…)


20160995-CA                     20               

                            State v. Leech


State v. Ellis, 

, 

 (cleaned up). To
determine whether it is reasonably likely that the outcome of the
trial would have been different in the absence of the error, we
must “consider a hypothetical—an alternative universe in which
the trial went off without the error.” Id. ¶ 42. In this case, we
“assess the likely outcome of a trial in which [T.J.’s] preliminary
hearing testimony is eliminated and the jury is left to consider
the remainder of the prosecution’s case.” 8 See id.



(…continued)
(distinguishing United States Supreme Court caselaw requiring
a defendant to show that an unpreserved rule 11 violation
affected his substantial rights under rule 52(b) from the showing
of “good cause” required when a defendant moves to withdraw
his plea based on a rule 11 error), abrogated on other grounds by
State v. Guard, 

, 

. However, the Utah
Supreme Court may wish to squarely address this issue in a
future case. Drawing a similar distinction would encourage
defendants to raise objections in the district court when errors
can be potentially avoided. See Molina-Martinez v. United States,

 (2016) (Alito, J., concurring) (“Rule 52 of the
Federal Rules of Criminal Procedure treats defendants who
preserve their claims much more favorably than those who fail
to register a timely objection.”).

8. As the Utah Supreme Court has recognized, “[t]his may not be
the only way to frame the counterfactual prejudice analysis in a
case like this one.” State v. Ellis, 

, ¶ 42 n.2, 

.
In arguing prejudice, Leech also imagines scenarios in which T.J.
testified subject to cross-examination at trial or in which the
court granted a continuance to allow the defense to mitigate the
impact of T.J.’s refusal to testify. However, because all efforts to
compel T.J. to testify had failed and because admission of his
preliminary hearing testimony would have been error with or
                                                       (continued…)


20160995-CA                      21               

                            State v. Leech


¶44 In making this determination, we consider the strength of
the evidence against Leech on each count and the degree to
which the admission of T.J.’s testimony altered the evidentiary
picture. Errors involving the improper admission of evidence are
often harmless where there is other overwhelming evidence in
the record proving the defendant’s guilt. State v. Harvey, 

, 

. Conversely, we “are more likely to
reverse a jury verdict if the pivotal issue at trial was credibility of
the witnesses and the errors went to that central issue.” State v.
Thompson, 

, 

.

¶45 Besides T.J., the middleman was the State’s only witness
with first-hand knowledge of all the events giving rise to each of
the six charges against Leech. Because the middleman’s
testimony was central to the State’s case, Leech’s defense focused
heavily on attacking the middleman’s credibility. The defense
argued that the middleman is “an accomplished” and
“persistent liar;” “lying is just like breathing” to him. On the
stand, the middleman admitted that he had repeatedly lied to
law enforcement and had “told them so many stories” he could
no longer “remember any of them.” He also admitted to other
crimes of “dishonesty or false statements.”

¶46 The defense argued that the middleman had come
forward only to protect himself after he was arrested on an
unrelated charge while he was “on the run from the FBI and
federal drug distribution charges where he’s agreed to cooperate
with the FBI but didn’t.” The middleman confirmed that, before
the events at issue in this case, the FBI had agreed not to pursue
charges against him in exchange for his cooperation against a


(…continued)
without a continuance, we assess prejudice by considering the
likely outcome of a trial in which T.J.’s preliminary hearing
testimony was properly excluded.




20160995-CA                      22                

                           State v. Leech


drug cartel. But rather than fulfilling his end of the bargain, he
disappeared and continued selling drugs. He also confirmed
that, in exchange for his truthful testimony in this case, the State
would recommend that he serve no prison time. The defense
told the jury that the middleman would do “whatever it takes”
to avoid going to federal prison where he would be “labeled a
snitch against the cartels” and was willing to “plead guilty to
lying to the police about what happened in this case in exchange
for his testimony as part of a deal.”

¶47 The defense also argued that it was the middleman who
had a motive to kill the victim for disappearing with the cash,
the rental car, and the drugs stashed in its trunk. The defense
maintained that the evidence established only two facts beyond
a reasonable doubt: “[The victim] is dead and [the middleman]
shot him.” According to the defense theory, the evidence
showed that the middleman shot the victim not to save his own
life, but because he was angry and wanted to send a message
that “[n]obody steals from me.” The middleman admitted that
he had served time in federal prison on racketeering charges and
had been a high-ranking member of a white supremacist prison
gang. The defense argued that the middleman was “no follower”
and took “orders from no one, especially not somebody like
Chris Leech.”

¶48 By convicting Leech on all charges, the jury presumably
rejected these defense arguments and believed at least some
portion of the middleman’s testimony. But the likelihood of the
jury reaching the same conclusion absent the error varies count
by count, depending on the degree to which those counts were
corroborated by evidence other than T.J.’s testimony. Looking at
the complete evidentiary picture, there is a reasonable likelihood
of a different result only where the jury was required to credit
the middleman’s uncorroborated testimony in order to convict.
As explained below, Leech has demonstrated prejudice with




20160995-CA                     23               

                           State v. Leech


respect to the obstruction of justice count, but not with respect to
the kidnapping, robbery, and murder counts.

A.     Aggravated Kidnapping and Aggravated Robbery Counts

¶49 With regard to the two aggravated kidnapping and two
aggravated robbery counts, there is no reasonable likelihood that
the jury would have reached a different verdict if T.J.’s
testimony had been excluded. Leech was charged with
aggravated kidnapping of both the middleman and the victim.
Under the facts of this case, 9 Leech was guilty of aggravated
kidnapping if the jury found beyond a reasonable doubt that he
used or threatened to use a dangerous weapon in the course of
committing an unlawful detention or kidnapping. 10 See 

(1) (LexisNexis Supp. 2019). Leech was
similarly charged with aggravated robbery of both men based on


9. Both the aggravated kidnapping and the aggravated robbery
statutes include various aggravating factors, only one of which
must be proven beyond a reasonable doubt. We do not list all the
aggravators that may be applicable to the facts of this case
because the use of a dangerous weapon aggravator is most
readily satisfied.

10. To establish the underlying crime of unlawful detention, the
State was required to prove that Leech, as a party to the offense,
“intentionally or knowingly, without authority of law, and
against the will of the victim, detain[ed] or restrain[ed] the
victim under circumstances not constituting” kidnapping. See

(1) (LexisNexis 2014). As relevant to
the facts of this case, the alternative underlying crime of
kidnapping required proof that the detention or restraint was for
“any substantial period of time” or “in circumstances exposing
the victim to risk of bodily injury.” See 

-
301(1)(a)–(b) (LexisNexis Supp. 2019).




20160995-CA                     24               

                           State v. Leech


emptying their pockets before putting them in T.J.’s truck. Leech
was guilty of aggravated robbery if the jury found beyond a
reasonable doubt that he used or threatened to use a dangerous
weapon in the course of committing a robbery. 11 See 

(1)(a)–(b) (LexisNexis 2017).

¶50 The admissible evidence supporting these counts was not
limited to the middleman’s testimony. Instead, the acts satisfying
the elements of all four counts took place in front of three
additional witnesses, each of whom testified at trial and
corroborated the middleman’s account. One witness testified to
the events that took place at the house; two others testified to the
events that took place at the apartment. All three witnesses
confirmed that Leech was the “leader of the group,” “in control
of what was going on,” and “the one who told everybody what
to do.”

¶51 One witness confirmed that the middleman was being
held against his will in the house’s garage and, when he tried to
leave, Leech put a gun to his head, shoved him into the garage,
and told him to “[g]et back in the room.” The two other
witnesses testified that, when the victim finally arrived at the
apartment, Leech pointed his gun at the middleman and the


11. To establish the underlying crime of robbery, the State was
required to prove that Leech, as a party to the offense,
unlawfully and intentionally took or attempted “to take personal
property in the possession of another from his person, or
immediate presence, against his will, by means of force or fear,
and with a purpose or intent to deprive the person permanently
or temporarily of the personal property” or that Leech
intentionally or knowingly used “force or fear of immediate
force against another in the course of committing a theft or
wrongful appropriation.” See 

(1)
(LexisNexis 2017).




20160995-CA                     25               

                           State v. Leech


victim and ordered them to get down on the ground. Both
witnesses confirmed that, at Leech’s direction, T.J. tied the
victim’s and the middleman’s hands behind their backs with
speaker wire and that Leech took everything out of their pockets,
including their cell phones and their wallets. According to both
witnesses, Leech zipped up the hooded sweatshirts the two men
were wearing, pulled the hoods over their heads, cut a hole in
the hoods, and tied the hoods over their faces with speaker wire.
Leech then ordered the middleman and the victim to stand up
and escorted them outside to T.J.’s truck.

¶52 The testimony of those three witnesses independently
supported Leech’s aggravated kidnapping and aggravated
robbery convictions. Their testimony was consistent not only
with the middleman’s account of what happened at the house
and the apartment, but also with the physical evidence. When
police recovered the victim’s body, his hands appeared to have
been bound with speaker wire and a hole had been cut in the
hood of his sweatshirt.

¶53 “We will not overturn a jury verdict for the admission of
improper evidence if the admission of the evidence did not
reasonably affect the likelihood of a different verdict.” State v.
Landon, 

, 

 (cleaned up). Based on
the overwhelming evidence supporting the aggravated
kidnapping and aggravated robbery charges, Leech has not
demonstrated a reasonable likelihood that he would have
attained a more favorable result at trial had T.J.’s prior testimony
not been admitted.

B.     Aggravated Murder

¶54 Similarly, there is no reasonable likelihood that the jury
would have acquitted Leech of aggravated murder if T.J.’s
testimony had been excluded. Leech argues that T.J. “was a
critical State witness whose testimony ‘provided key pieces of
evidence that the jury likely credited’ and was necessary for the


20160995-CA                     26               

                           State v. Leech


State to establish Leech’s culpability.” (Quoting State v. Ellis,

, 

.) To be sure, no evidence besides
T.J.’s testimony corroborated the middleman’s story that it was
Leech who fired the first bullet into the victim’s torso or that
Leech then ordered the middleman, at gunpoint, to “finish him.”
As the defense pointed out at trial, the middleman had an
interest in deflecting responsibility by claiming that Leech had
forced him to shoot the victim. We agree with Leech that,
without T.J.’s corroborating testimony, the jury may have had a
reasonable doubt as to the veracity of the middleman’s selfserving testimony. And, even if the jury believed that the
middleman shot the victim to save his own life, the jury had only
his word that it was Leech, and not one of the other armed men
on the scene, who directed the murder.

¶55 But in attempting to establish prejudice, Leech does not
grapple with the fact that he was charged as a party to the offense
of aggravated murder. To prove his guilt, the State was not
required to prove that Leech personally committed the offense.
Instead, the State was required to prove only that (1) the offense
had been committed; (2) Leech had intentionally, knowingly, or
recklessly solicited, requested, commanded, encouraged, or
intentionally aided the commission of the offense; and (3) Leech
acted with the mental state required for aggravated murder. See

 (LexisNexis 2017).

¶56 As to the first element, Leech does not dispute that
someone committed the offense. The physical evidence
recovered at the scene confirmed that the murder took place in a
location and in a manner consistent with what the middleman
described. Specifically, it showed that the victim had been bound
with speaker wire, taken to a remote location in the mountains
near an embankment, and shot once in the torso and once in the
head. Indeed, at trial, Leech conceded there were “two things in
this case that we know beyond a reasonable doubt”—that the
victim is dead and that the middleman shot him. Leech also does



20160995-CA                     27              

                           State v. Leech


not challenge the jury’s finding that the murder was committed
under aggravating circumstances. 12 Instead, he argues that there
is a reasonable likelihood that the jury would not have believed
the middleman’s testimony about Leech’s role in the murder if
T.J.’s testimony had been excluded.

¶57 But for purposes of party liability, the State was not
required to prove that Leech personally committed or directed
the murder. To establish the second and third elements of party
liability, it was enough to prove that Leech aided the
commission of the offense with intent to cause the victim’s death
or knowing the victim’s death was reasonably certain to result.
Accordingly, Leech’s guilt did not turn on whether his actions at
the scene of the murder were exactly as the middleman
described. Even if someone else had been the principal actor at
the time of the murder, it would not have relieved Leech of
criminal responsibility so long as the jury found that Leech was
liable as a party to the offense. In other words, Leech’s guilt did
not depend on the jury believing that Leech fired the first shot or
that Leech forced the middleman to shoot the victim.




12. The jury found multiple aggravating factors, including that
the homicide was committed “incident to an act, scheme, course
of conduct, or criminal episode during which the actor
committed or attempted to commit aggravated robbery,
robbery,” “aggravated kidnapping, or kidnapping.” See 

(1)(d) (LexisNexis 2017). The evidence
regarding the aggravated kidnapping and aggravated robbery
counts was overwhelming, see supra ¶¶ 49–52, as was the
evidence that the homicide occurred during the same criminal
episode. Therefore, there is no reasonable likelihood that the jury
would have reached a different verdict with respect to the
aggravation requirement.




20160995-CA                     28              

                           State v. Leech


¶58 Without T.J.’s corroborating testimony, the jury might
have doubted the middleman’s description of what happened on
the mountain. But even if the jury had disregarded this
uncorroborated      testimony    entirely,    plentiful  evidence
establishing Leech’s guilt as a party to the murder was admitted
through the testimony of other witnesses. At the house, Leech
pulled a gun on the middleman, held him captive, and
announced his intention to shoot both the middleman and the
victim when he found him. When the victim returned with the
drugs and the rental car, Leech declared that it was “too late”
and that the middleman and the victim must “pay for what they
did.” In front of two other witnesses, Leech solicited the help of
two cohorts, both of whom were also armed, to rob and kidnap
the middleman and the victim. Leech incapacitated the two men
by ensuring that they were bound and blindfolded, their pockets
emptied, and their shoes removed. Then he ordered T.J. and
Juice to help him take the men into the mountains to be taught a
lesson.

¶59 Even if the jury harbored reasonable doubts about some
of the details of what happened after that point, the second and
third elements of party liability had already been established. As
to the second element, the overwhelming evidence established
that Leech intentionally, knowingly, or recklessly “solicited,
requested, commanded, encouraged, or intentionally aided the
commission of the offense” of aggravated murder when he held
the middleman and the victim at gunpoint and enlisted the help
of T.J. and Juice to incapacitate the two men, remove any
identification from their pockets, and force them into T.J.’s truck
to be taken to a remote location.

¶60 As to the third element, the evidence overwhelmingly
established that Leech had the mental state required for
aggravated murder because he intentionally or knowingly
caused the victim’s death. See 

(1)
(LexisNexis Supp. 2019). Intent is rarely subject to direct proof



20160995-CA                     29              

                           State v. Leech


and must generally be inferred from the actions of the defendant
and the surrounding circumstances. State v. Florez, 

, 

. But, in this case, the State offered evidence
that Leech actually voiced his intention to shoot both the
middleman and the victim. Other witnesses who observed
Leech’s behavior similarly understood that he intended for the
two men to die. Even when Leech tried to reassure Juice’s wife
that he was planning only to make the hapless drug dealers walk
barefoot down the mountain, she understood Leech’s intentions
to be murderous and did not believe that anyone other than
Leech was “coming back.”

¶61 At the very least, the overwhelming evidence established
that Leech knowingly caused the victim’s death because he
was aware that his conduct was reasonably certain to cause
that result. See 

(2) (LexisNexis 2017).
In the presence of multiple witnesses, Leech recruited two
other armed men to help him, incapacitated the middleman
and the victim, and directed that the bound and blindfolded
men be taken off-site to pay for what they did. Even if the
jury had a reasonable doubt as to what exactly happened after
the men left the apartment, the overwhelming evidence
established that Leech initiated the events leading to the murder
knowing that the victim’s death was at least reasonably certain
to result.

¶62 Because Leech’s conduct before leaving the apartment
established the second and third elements of party liability, his
conviction for aggravated murder did not depend on the
veracity of the middleman’s account of the murder itself. The
only remaining element—that the crime Leech set in motion was
thereafter committed—was not disputed at trial. Accordingly,
there is no reasonable likelihood that the erroneous admission of
T.J.’s corroborating testimony changed the result, making the
error harmless as to Leech’s aggravated murder conviction.




20160995-CA                     30               

                           State v. Leech


C.     Obstruction of Justice

¶63 In contrast, the obstruction of justice charge could not be
proven without crediting the middleman’s testimony. And there
is a reasonable likelihood that the jury would not have believed
the middleman without the corroboration T.J.’s testimony
provided. To convict Leech of obstruction of justice, the jury was
required to find that Leech “altered, destroyed, concealed or
removed any item or other thing”—or intentionally, knowingly,
or recklessly “solicited, requested, commanded, encouraged, or
intentionally aided another” to do so—with the specific intent to
“hinder, delay, or prevent the investigation, apprehension,
prosecution, conviction, or punishment of any person” for the
crimes charged. See 

 (LexisNexis 2017)
(obstruction of justice); see also 

 § 76-5-202 (party liability).

¶64 The State’s case that Leech had obstructed justice relied
heavily on T.J.’s testimony. T.J. testified that Leech took T.J.’s
gun and said he would “get rid of” it, that Leech told T.J. to get
rid of his clothes, and that Leech told Juice to burn the
middleman’s clothes and T.J.’s boots. If that testimony had been
properly excluded, the only remaining evidence relating to the
obstruction counts would have been the middleman’s testimony.
T.J.’s improperly admitted testimony significantly altered the
entire evidentiary picture by substantiating the middleman’s
account. Without the corroboration offered by T.J.’s prior
testimony, there is a reasonable probability that the middleman’s
testimony alone would not have convinced the jury of Leech’s
guilt beyond a reasonable doubt. The likelihood of such a result
is sufficient to undermine our confidence in the verdict with
respect to the obstruction count.

¶65 The State contends that Leech cannot show prejudice
because T.J.’s testimony was merely cumulative, noting that all
the facts necessary to support the jury’s verdict can be gleaned
from the record even if T.J.’s testimony is excluded. This



20160995-CA                     31               

                           State v. Leech


argument fails to recognize the important distinction between
analyzing the sufficiency of the evidence supporting a conviction
and assessing prejudice stemming from the improper admission
of evidence. See United States v. Lane, 

, 450 n.13 (1986)
(agreeing “that the harmless-error inquiry is entirely distinct
from a sufficiency-of-the-evidence inquiry”).

¶66 In the counterfactual scenario where T.J.’s testimony had
been properly excluded, we agree with the State that the
remaining evidence would have been sufficient to prove Leech’s
guilt beyond a reasonable doubt. The middleman testified that
Leech said that he would “take care of the guns”; instructed T.J.
to detail his truck; and told the middleman to change out of his
clothes, leave them outside the bathroom, and keep looking for
the victim as if “nothing happened.” That testimony alone
would have been sufficient to convict Leech of obstruction of
justice.

¶67 But the prejudice analysis does not depend on whether
the properly admitted evidence would have been sufficient to
sustain the conviction; rather, we consider whether, in the
absence of the improperly admitted evidence, the likelihood of a
different outcome is sufficiently high to undermine our
confidence in the verdict. See State v. Knight, 

(Utah 1987). In this case, the middleman’s testimony standing
alone, if believed, would have been sufficient to support the
jury’s verdict on the obstruction of justice count, and Leech does
not claim otherwise. But if the middleman’s story had not been
corroborated by T.J., the defense could have more effectively
exploited the middleman’s lack of credibility and possible
motive in covering up his own actions. If the only account of
what had happened after the murder had been provided by a
person who admittedly shot the victim, it is reasonably likely
that the jury would have had reasonable doubt regarding
Leech’s guilt on the obstruction of justice count.




20160995-CA                     32               

                           State v. Leech


¶68 The State resists this conclusion by arguing that, because
the evidence showed that Leech “was in charge leading up to the
murder,” it would “come as no surprise” that he “would retain
his position afterward and direct the cover up.” To be sure, the
testimony of the other witnesses paints a picture of Leech calling
the shots from the moment he arrived at the house up until he
left the apartment in T.J.’s truck. This evidence is consistent with
the middleman’s testimony that Leech continued to assert
control and ultimately directed the subsequent obstruction of
justice.

¶69 But unlike the murder, which indisputably happened,
without T.J.’s testimony, the jury had only the middleman’s
word that any obstruction of justice occurred. The State
presented no other admissible evidence to prove that anyone
had “altered, destroyed, concealed, or removed any item or
other thing,” let alone that Leech had directed or otherwise
participated in that offense with the specific intent to obstruct
justice. While the jury might have credited the middleman’s
story even without T.J.’s corroborating testimony, the likelihood
that T.J.’s testimony tipped the scales is sufficient to undermine
our confidence in the verdict on the obstruction of justice count.


                         CONCLUSION

¶70 We conclude that T.J.’s prior testimony was inadmissible
hearsay, and that the exception set forth in rule 804(b)(1) of the
Utah Rules of Evidence is inapplicable because the defense did
not have the same opportunity and motive to cross-examine T.J.
at the preliminary hearing as it would have had at trial. The
district court therefore erred in admitting that testimony. This
error did not prejudice Leech’s defense with respect to the
kidnapping, robbery, and murder counts, but there is a
reasonable likelihood that Leech would not have been found
guilty of obstruction of justice absent the error.




20160995-CA                     33               

                         State v. Leech


¶71 Accordingly, we affirm Leech’s convictions for two counts
of aggravated kidnapping, two counts of aggravated robbery,
and one count of aggravated murder. We vacate Leech’s
conviction for obstruction of justice and remand to the district
court for further proceedings.




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